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USSC to Hear Trio of LGBTQ Cases
By: Teresa Shulda

The Supreme Court recently agreed to hear three cases that address whether Title VII’s protections against sex discrimination extend to discrimination on the basis of an employee’s sexual orientation and gender identity. Lower courts have struggled with the question of whether “discrimination on the basis of sex” could include protections for LGBTQ workers, resulting in a split among the federal courts of appeal. The Supreme Court will now have the opportunity to resolve the question once and for all. Two of the cases involve gay employees who both claim that they were fired because of their sexual orientation. In one case, Zarda v. Altitude Express, the Scond Circuit Court of Appeals (covering northeastern states) ruled that Title VII extended to sexual orientation discrimination.  In the other case, Bostock v. Clayton County, the Eleventh Circuit Court of Appeals (covering southern states) ruled that Title VII did not protect employees from sexual orientation discrimination. The third case the Supreme Court will hear involves a transgender employee. In R.G. & G.R. Harris Funeral Homes Inc. v. EEOC, a funeral home owner terminated an employee because of her transgender status. The business owner relied on the Religious Freedom Restoration Act to argue that his personal religious beliefs supported his termination decision and RFRA provides a defense for employers with sincerely held religious beliefs. The Sixth Circuit Court of Appeals (covering midwestern states, but not Kansas), ruled against the business owner and found that Title VII protects transgender employees and RFRA did      Continue Reading...

Real Life Is Stranger Than Fiction
By: Teresa Shulda

Employment attorneys always tell their colleagues that the best practice area is undoubtedly employment law. HR professionals probably feel much the same way. Every personnel situation is different, it’s never boring, and just when you think you’ve seen it all, you hear about another wild day in the workplace. 2018 was no different, and the following real-life cases prove it.

Georgia man gets a kick in the butt(dial)
James Stephens worked as the Fiscal Officer for the Georgia Subsequent Injury Trust Fund, a state agency. After work one day, Stephens’ boss, Michael Coan, called Stephens at home on his cell phone and they talked about work for a while. Stephens hung up, put his cell phone in his pocket, and went on a rant to his wife for 12 minutes about Coan.
Unfortunately for Stephens, he had inadvertently “pocket-dialed” Coan, who heard the whole rant. When Stephens went to work in the morning, Coan gave him a choice – resign or be fired. Stephens resigned, then he and his wife sued Coan under Georgia’s eavesdropping law and for invading the Stephens’ right to privacy. The Stephens claim that Coan had a legal obligation to hang up when he realized the call was inadvertent rather than listen in to the Stephens’ private conversation.
Coan filed a motion to dismiss the lawsuit, arguing that Coan was immune from the suit because he was acting in his official capacity as a state supervisor and had a right to listen to the conversation of a subordinate employee      Continue Reading...
Governor Colyer Gives Paid Leave to State Workers
By: Teresa Shulda
On November 21, 2018, outgoing Governor Colyer issued Executive Order 18-19, which provides paid parental leave for over 17,000 Kansas state employees. Under this order, all state employees in the Executive Branch under the governor’s jurisdiction will be eligible to receive paid leave equal to 100 percent of their regular salary following the birth or adoption of a child. Primary caregivers can receive up to six weeks of paid leave, while secondary caregivers can receive up to three weeks. As of right now, who constitutes a primary versus secondary caregiver is not defined, but the Office of Personnel Services has been charged with establishing guidelines and leave codes to implement the order.
Governor Colyer said the order reflected “how important our children are to us and how much we value family here in Kansas,” and he encouraged other statewide elected officials and agencies to adopt similar policies for their employees. Kansas joins 14 other states and the District of Columbia in providing paid parental leave to all or some of the state’s workforce.
Kansas Agencies Ban-the-Box
By: Teresa Shulda

A growing number of employers have voluntarily decided to eliminate questions about criminal convictions and arrests from their employment applications. Koch Industries, a Kansas-based company and one of the country’s largest private employers, has been on the leading edge of the movement. Now, Kansas Governor Jeff Colyer is joining the movement with a recent executive order. 

What is the “ban-the-box” movement?
“Ban-the-box” refers to the box that has historically appeared on many job applications asking the applicant whether he or she has ever been arrested or convicted of a crime. The “ban-the-box” movement has been an effort organized by civil rights organizations composed primarily of formerly incarcerated people and their families. Statistics show that lack of employment makes it more likely that ex-offenders will re-offend, so those supporting this movement argue that employing more individuals with criminal convictions will have a positive impact on society. In essence, supporters of the movement advocate for enabling people with prior convictions to show their qualifications for a position before being automatically excluded from the job based on their criminal record.
Is it legal to ask applicants about their criminal history on the application?
Maybe; maybe not. Currently, 31 states and more than 150 cities and counties have adopted laws or policies “banning” the box for government positions. In other words, public-sector employers in these states and cities cannot include inquiries on application forms that would require the applicant to disclose arrest and conviction information. Eleven states (California, Connecticut, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon, Rhode      Continue Reading...
The Evolution of Title VII and Sex Discrimination
By: Teresa Shulda

It seems as though every few months we need to update our understanding of what discrimination “because of... sex” means under Title VII. Gay and lesbian employees continue to bring discrimination claims against employers, arguing that Title VII’s prohibition against discrimination “because of... sex” extends to sexual orientation discrimination. Well, it’s time for another update.

Last month, the Second Circuit Court of Appeals issued a ruling in Zarda v. Altitude Express, Inc., finding that sexual orientation discrimination is motivated, at least in part, by sex, and is thus a subset of prohibited sex discrimination under Title VII. In Zarda, the plaintiff, a skydiving instructor, claimed he was terminated due to his failure to conform to male sex stereotypes solely because he was gay. The plaintiff did not claim that he failed to conform to a masculine look or behavior. Rather, he claimed it was simply the fact that he was gay and referenced his sexual orientation to clients and coworkers that led to his termination.
The Zarda court recognized the long-standing rule that gender-based stereotyping can violate Title VII’s prohibition on discrimination “because of... sex.” For example, in Price Waterhouse v. Hopkins, a case decided in 1989, the U.S. Supreme Court found in favor of a female plaintiff who alleged that she was denied partnership, because she did not fit the male partners’ idea of what a female employee should look and act like. Male partners instructed her that she would have a better      Continue Reading...
Ho Ho Oh No! HR Pitfalls at the Annual Holiday Party
By: Teresa Shulda

The Naughty List

Santa’s list wouldn’t be complete if it didn’t have a few coal recipients.  The following are true stories of office parties that went horribly awry.
  • A California bank branch held an annual holiday party at a local restaurant.  There were only about 15 people in attendance, but they included a female bank teller, the teller’s female boss, and the boss’ boyfriend (a manager at a different bank branch).  The entire affair, including the alcohol, was funded by the bank’s budget.  The office party officially ended, but the party-goers continued their revelries.  But once the bank’s party ended, the bank employees had to fund their own cocktails.  The party continued into the restaurant bar area, then moved to another bar as the night progressed, and finally ended up at the boss’s house.  You can probably see where this is going.  The teller ultimately accused her boss and the boss’s boyfriend of sexual harassment, and brought suit against the bank, alleging that the bank should have foreseen the harassment, particularly in light of the alcoholic drinks that were provided at the holiday party.  The trial court ultimately found the bank wasn’t liable, largely because the office party ended, and the drinking that continued wasn’t on the bank’s dime.   
  • A restaurant in New Hampshire employed a head chef who trended toward the vulgar – on a daily basis.  The other employees in the kitchen had just about had it when the restaurant held an      Continue Reading...
Tricks at Work Are No Treat for Employers
By: Teresa Shulda

Halloween is a lot of fun for both kids and adults.  When else can we wear inappropriate costumes, gorge on unlimited candy, and create a “Walking Dead” display in our front yard?  But when the spectral mist of Halloween creeps into the workplace, things can get really scary. Here are some real-life Halloween work-place mishaps that left employers haunted:

  • A retail store put up a notice encouraging employees to come to work in costume on Halloween.  About half participated, while the other half showed up in their regular clothes.  Donna Meraz was one of the employees who didn’t wear a costume, claiming that doing so conflicted with her religious beliefs.  Later that year when Meraz’s work hours were reduced, she sued the company alleging she was retaliated against for her religious beliefs after refusing to work in costume on Halloween.  The court gave the employer a treat, dismissing Meraz’s retaliation claim. 
  • An employee brought a retaliation claim against her employer, alleging she was fired after complaining about a male supervisor who constantly made suggestive remarks about female employees.  On one occasion, a woman wore a cat costume to work on Halloween and the male supervisor allegedly said that he “liked her tail.”  Unfortunately, the male supervisor got up to other hijinks like this and the court ordered the case to a jury. 
  • Several black and Hispanic employees of a city parks department brought class action      Continue Reading...
Severance Policy Not Applicable to Employees Who Suffered No Job Loss
By: Teresa Shulda
Some employers have written policies that provide severance pay when employees lose their jobs through actions like job eliminations or reductions in force. So what happens when employees lose their job with the original employer, pursuant to a consolidation or plant sale, but that employer makes arrangements for them to transfer to comparable jobs with the new employer with no lost work time? The Kansas Court of Appeals recently ruled that City of Topeka employees whose employment was transferred to Shawnee County did not experience a “lay-off due to work or job elimination,” and thus were not eligible for severance pay under the City’s severance pay policy.
The terms of employment for workers in Topeka’s parks and recreation department were governed by the city’s personnel code. One provision of the personnel code addressed severance pay, setting forth who is eligible for it, under what circumstances, and how much.
In 2011, the city decided to consolidate its parks and rec department with Shawnee County’s department. The city and county entered into several “consolidation contracts” that set forth the terms of the consolidation. Moreover, the city’s employees didn’t need to worry about their jobs because the city was able to negotiate an assurance with the county that all city employees who wanted to could transfer to county positions at comparable pay.
The city was able to negotiate other provisions for its employees, including:
  1. They would be able to receive severance pay if the county fired them within the first three years after      Continue Reading...
Ho Ho Oh No! HR Pitfalls at the Annual Holiday Party
By: Teresa Shulda

As the outdoor air cools and becomes crisp, office-wide relief becomes palpable as businesses finally stop blasting the office’s AC-on-steroids system.  Ugly holiday sweaters that violate all fashion sensibilities, if not office dress codes, start to appear on the regular.  And all are delighted by that one co-worker in the open cubicle area who plays the 24-hour holiday music radio station.  It’s that time of year again!  Time for holiday cheer and avoiding the pitfalls that can come from the annual holiday office party.

The Naughty List
Santa’s list wouldn’t be complete if it didn’t have a few coal recipients.  The following are true stories of office parties that went horribly awry.
  • A California bank branch held an annual holiday party at a local restaurant.  There were only about 15 people in attendance, but they included a female bank teller, the teller’s female boss, and the boss’ boyfriend (a manager at a different bank branch).  The entire affair, including the alcohol, was funded by the bank’s budget.  The office party officially ended, but the party-goers continued their revelries.  But once the bank’s party ended, the bank employees had to fund their own cocktails.  The party continued into the restaurant bar area, then moved to another bar as the night progressed, and finally ended up at the boss’s house.  You can probably see where this is going.  The teller ultimately accused her boss and the boss’s boyfriend of sexual harassment, and brought suit against the bank, alleging that the bank      Continue Reading...
NLRB Strikes Down Employer’s “Positivity Policy”
By: Teresa Shulda

“Come to work with a positive attitude, and promote a positive work environment.”  Most employers would look at that statement and think “that makes sense.”  But if employers incorporate this type of broad statement into their employee handbooks, they might run afoul of the National Labor Relations Act (“NLRA”).  Or so says the National Labor Relations Board (“NLRB”) in its recent decision striking down yet another handbook policy as a violation of an employee’s right to engage in “concerted protected activity” under the NLRA.

T-Mobile’s “Positivity Policy” 

The General Counsel of the NLRB filed several complaints against T-Mobile, alleging that many of the company’s handbook policies violated the NLRA because they were overbroad and thus, employees could “reasonably construe the language [of the policy] to prohibit Section 7 rights” under the NLRA.  That section of the NLRA guarantees employees the right to engage in “concerted protected activity;” which is activity by two or more employees that addresses and is intended to improve workplace terms and conditions.  So, any workplace rule or policy that interferes with that right violates the NLRA.
Among the several policies the General Counsel took issue with was T-Mobile’s “positivity policy” under the “Workplace Conduct” provision of the company’s handbook.  That policy stated:
"The Company expects all employees to behave in a professional manner that promotes efficiency, productivity, and cooperation.  Employees are expected to maintain a positive work environment by communicating in a manner that is conducive to effective working relationships with internal and external customers, clients, co-workers, and management."
In opposing      Continue Reading...
EEOC Lawsuits Seek to Extend Title VII to Sexual Orientation - Part IV
By: Teresa Shulda

What should HR be doing now? 

Given the rapid pace of changing and polarizing political, legislative, and individual viewpoints on LGBT rights, it’s reasonable to conclude that the EEOC has chosen now as the right time to test the courts on whether Title VII includes sexual orientation discrimination.  And, if the federal legislature does not pass a law specifically addressing sexual orientation discrimination, it’s equally reasonable to anticipate the Baxley, Boone, or a similar case will reach the U.S. Supreme Court in the near future for a definitive decision on the issue.   
So what should you be doing in the meantime?  First, check your company’s equal employment opportunity policy.  Many private employers have voluntarily included sexual orientation and gender identity as protected categories within anti-discrimination and harassment policies.  If your own policies and procedures prohibit discrimination against LGBT employees, they should be enforced in the same manner as other protected categories. 
Second, keep track of developments in the law so that you know how different states and cities (where your company might operate) approach sexual orientation discrimination.  For example, though the Kansas Act Against Discrimination does not include sexual orientation as among the protected categories, two cities, Lawrence and Roeland Park, have passed ordinances prohibiting discrimination on the basis of sexual orientation and gender identity.  Moreover, 22 states and the District of Columbia have specifically included sexual orientation within their state anti-discrimination laws; 19 of those states and D.C. include gender identity as well. 
Third, regardless of whether any policy or law specifically prohibits      Continue Reading...
EEOC Lawsuits Seek to Extend Title VII to Sexual Orientation - Part III
By: Teresa Shulda

So what’s different about the 2016 lawsuits? 

In the recent lawsuits, the EEOC seeks to extend its reasoning in Baldwin (which was limited to the federal employment context) to the realm of private employment.  In other words, the EEOC is trying to get courts to reverse their prior decisions and agree with the agency that Title VII prohibits sexual orientation discrimination.
In EEOC v. Scott Medical Health Center, a case filed in the District Court for the Western District of Pennsylvania, the EEOC claims the employer allowed a heterosexual male manager to subject a gale male employee, Dale Baxley, to a sexually hostile work environment.  The lawsuit alleges that the manager used anti-gay epithets to refer to Baxley, and, upon learning that Baxley was married, made further derogatory comments about Baxley’s sex life with his husband.
In EEOC v. Pallet Companies d/b/a IFCO Systems NA, Inc., filed in the District of Maryland, the EEOC made similar allegations on behalf of a lesbian employee, Yolanda Boone.  Boone alleged that her manager made frequent derogatory comments directed at her sexual orientation, including saying, “I want to turn you back into a woman,” “I want you to like men again,” and quoting biblical passages that a woman should not be with a woman. 
According to both lawsuits, the employees filed internal complaints but nothing was done to correct the managers’ behavior.  Baxley quit rather than endure the continued harassment and claimed constructive discharge, while Boone was fired shortly after making a complaint.
In both cases, the EEOC makes an allegation mirroring the      Continue Reading...
EEOC Lawsuits Seek to Extend Title VII to Sexual Orientation - Part II
By: Teresa Shulda

What is the EEOC’s position on sexual orientation? 

Since at least 2013, the EEOC has taken the position that Title VII’s prohibition against discrimination “based on sex” includes discrimination based on sexual orientation.  Starting that year, the agency began accepting and investigating charges filed against private employers alleging sexual orientation discrimination.   In 2015, the agency received 1,181 charges alleging sexual orientation discrimination, and was able to resolve some of those charges via voluntary agreements yielding approximately $3 million in monetary relief for employees. 
The EEOC made its position abundantly clear this past summer in an administrative decision issued about one month after the U.S. Supreme Court made same-sex marriage legal in the landmark Obergefell v. Hodges decision.  In July 2015, the EEOC decided Baldwin v. Foxx, an administrative case, and concluded that a federal employer violates Title VII by discriminating against gay employees because of their sexual orientation.  That case involved a federal employee who brought a sex discrimination claim against the Department of Transportation.  Baldwin claimed he was not selected for a position because he is gay.  To support his claim, Baldwin presented evidence that a decision-maker in the selection process made several negative comments about Baldwin’s sexual orientation.
Title VII’s mandates regarding federal employment are parallel to the law’s requirements for private employers in that sex discrimination is prohibited, but sexual orientation is not mentioned as among the protected classes.  But the EEOC found that the existing Title VII protections against sex discrimination extended to sexual orientation discrimination.  The EEOC stated, “[s]exual orientation discrimination      Continue Reading...
EEOC Lawsuits Seek to Extend Title VII to Sexual Orientation - Part I
By: Teresa Shulda

Does Title VII cover sexual orientation? 

Title VII of the Civil Rights Act of 1964 (which applies employers with 15 or more employees) prohibits discrimination on the basis of an employee’s sex.  The law doesn’t mention sexual orientation as among the protected categories and many courts, including the 10th Circuit Court of Appeals (which covers Kansas employers), have concluded that Title VII does not in fact protect employees from discrimination on the basis of their sexual orientation.  That said, courts have concluded discrimination “based on sex” includes harassment and adverse actions based on sex-stereotyping.  In other words, discrimination against a woman because she does not conform to feminine or female-specific norms or stereotypes; or against a man because he does not conform to masculine or male-specific norms or stereotypes. 
This interpretation of Title VII has yielded legal success for some transgender employees.  For example, in Smith v. City of Salem, the plaintiff, a transgender firefighter, alleged that a disciplinary suspension was discrimination “based on sex” after coworkers made comments that Smith’s appearance and mannerisms weren’t masculine enough.  The City of Salem tried to get the lawsuit thrown out under the argument that Title VII doesn’t cover discrimination based on an employee’s transgender status.  The lower court agreed with the employer.  But the 6th Circuit Court of Appeals (which covers Kentucky, Michigan, Ohio and Tennessee) reversed, holding that Title VII applied if Smith was discriminated against based on gender non-conforming conduct. 
Transgender employees have seen similar outcomes in lawsuits brought in many states.  The key      Continue Reading...
How Will the Supreme Court's Ruling on Same-Sex Marriage Impact Kansas Employers?
By: Teresa Shulda

The Supreme Court has had a busy summer. Between ruling in favor of religious dress accommodations in EEOC v. Abercrombie and Fitch, fashioning a new test to apply in pregnancy bias cases in Young v. UPS, and ensuring the viability of the Affordable Care Act in King v. Burwell, you’d think that the Supreme Court had given employers enough to contemplate. But the nine Justices waited until the end of their term to deliver one of the most hotly anticipated decisions all year in Obergefell v. Hodges. By a 5 to 4 margin, the Court held that state bans on same-sex marriage are unconstitutional. Now, same sex couples can legally wed in all 50 states, and presumably, will be entitled to the same state and federal marriage-related rights and benefits that opposite-sex married couples enjoy.

But the Obergefell ruling raises questions for many employers, who are wondering what employment-related benefits are now required for same-sex couples. Obergefell was not an employment case and did not directly address any employment law issues; however, employers can expect to feel some impact from the decision.

Currently, there is no federal law that prohibits discrimination on the basis of an employee’s sexual orientation or gender identity. The 50 states are a patchwork of varying anti-discrimination laws in that regard. Indeed, some states are a patchwork of laws among cities within the state. While some states and cities prohibit discrimination and harassment on the basis of an employee’s sexual orientation,      Continue Reading...

EEOC Issues Updated Guidance on Pregnancy Discrimination
By: Teresa Shulda

The EEOC issued updated guidance with regard to the agency’s enforcement of discrimination under the Pregnancy Discrimination Act (“PDA”). You might recall that the EEOC originally issued guidance in the summer of 2014. In that original guidance, the EEOC took the position that the PDA requires employers to make accommodations to pregnant workers in the same manner that it does to other similarly situated workers. Thus, if an employer had a light-duty program it could not exclude pregnant workers from that program, even if the employer historically reserved light-duty positions for certain categories of employees, such as those injured on the job. 

This year, the Supreme Court issued its decision in Young v. UPS, which addressed some of the same issues the EEOC guidance attempted to clarify. In that case, Peggy Young was a delivery driver for UPS. When she became pregnant, her doctor placed her on lifting restrictions which would interfere with her ability to do her job, so Young requested light duty from UPS. UPS only provided light-duty work for certain categories of employees – those injured on the job, those with a disability, and those who lost their federal driving certifications. Since pregnancy didn’t fall within any of those three categories, UPS denied Young’s light-duty request and place her on leave without pay or benefits. 

Young sued under the PDA, arguing that UPS’s actions constituted sex discrimination based on her pregnancy. Young cited to the provision of the PDA that requires employers to treat pregnant women the same as      Continue Reading...

Make Sure You're Not Singing the "Summertime Blues"
By: Teresa Shulda

“Itsy Bitsy Teenie Weenie Yellow Polkadot Bikini”

Unless you’re a lifeguard, a swim suit is almost never proper attire in the workplace. But bikinis are usually the least of your worries when it comes summertime dress-code rule breakers. Some employees may think warmer weather justifies tank tops, shorts, and t-shirts in the office. If you’re wondering whether you should crack down on the employee who’s wearing the very-nice-pair-of-bejeweled-leather-but-still-flip-flops, the first step is to check your company’s dress code.
Dress codes should be structured around the necessities of your operation, and grounded in legitimate business purposes. For example, flip flops – no matter how nice – could pose a safety hazard in a workplace with dangerous machinery. And shorts and t-shirts may not fit the corporate business image that your company wants to project with its customer-facing positions. But probably most important, enforce your dress codes evenly. You don’t want to zero in on a female employee’s short shorts and issue discipline, but then ignore the male employee’s “My Co-Workers Are Idiots” t-shirt logo.
The summer typically brings an avalanche of vacation requests, but you still have to run your business. So how can you ensure that your entire workforce doesn’t suddenly come down with the flu on July 3? There’s no magic bullet, but there are several things you can do to try to curb absenteeism during the summer, and all year round.
First, make sure your attendance policy is clear and precise. It should spell out exactly when employees can take excused absences (e.g., vacation, sick leave, or earned time off), and when      Continue Reading...

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